DECISION AND ORDER The defendant, James Martinez, is charged with committing the crimes of Criminal Possession of a Weapon in the Second Degree (two counts) [Penal Law §§265.03(1)(b)]. [Penal Law §§265.03(3)] and Criminal Possession of a Firearm [Penal Law §§265.01-b(1)]. On July 9th, 12th and 19th, 2019, a Dunaway/Mapp/Huntley hearing was conducted by this Court to determine whether the evidence recovered by police officers from the defendant, namely a loaded 22-caliber handgun and statements made by the defendant to law enforcement both at the location of his arrest and later at the precinct, should be suppressed. In determining whether the evidence will be suppressed, the Court must specifically decide whether: 1) the police had sufficient justification to approach, stop the defendant, and recover the firearm from his person, and 2) whether the police violated the defendant’s 5th amendment right to remain silent. Police Officers, Kevin Earl and Kyle Reiss, the arresting officers, were the only witnesses who testified at the hearing. On July 19, 2019, following the conclusion of a Dunaway/Mapp/Huntley hearing, the defendant moved to suppress the evidence. In his motion, the defendant argues that the physical evidence recovered from him should be suppressed because Officer Earl did not have proper justification to seize him. Specifically, the defendant argues that the officer’s pursuit and detention of him constitutes an improper seizure because it was not justified by a reasonable suspicion that he was involved in any criminal activity. The defendant further moves that all statements made by the defendant be suppressed as the tainted fruit of the initial unlawful seizure. Additionally, the defendant asserts that suppression of these statements should be independently mandated on the ground that his Miranda rights were violated. In their response, the People argue that the Court should deny the defendant’s motion to suppress the evidence recovered from the defendant because the officer’s conduct (briefly stopping the defendant and conducting a protective frisk), fell within the bounds of a level three inquiry because they had reasons to establish a reasonable suspicion that a crime had been committed. In addition, the People argue that the statement made by the defendant both at the scene of his arrest and at the police precinct were voluntary and properly obtained. In the instant case, this Court finds that Officer’s conduct was proper under the circumstances in this case and the defendant’s right to privacy was not violated. Therefore, the physical evidence recovered from his person will not be suppressed and the defendant’s motion is hereby denied. The defendant’s motion to suppress the statements made to law enforcement is granted in part and denied in part. Factual Background On December 26, 2018, Officer Earl testified that he and his partner Officer Reiss were in plain clothes cruising in an unmarked police car. At approximately 7:20pm, he heard a “shots fired” radio broadcast regarding a shooting at the intersection of East 120th Street and Pleasant Avenue. Officer Earl said that he assumed that the shooting was gang related and he and his partner proceeded to drive east on 115th street on the hunch that the potential shooter would pass through 115th street to reach the Jefferson Houses, Johnson Houses or Taft Houses. As the officers drove the wrong way on 115th street, Officer Earl testified that he saw a man “jogging at a fast pace” adjacent to the Jefferson Houses. Officer Earl noticed that the man had his right hand inside his right jacket pocket and that his right pocket jacket appeared to contain something heavy. At that point, the officers stopped the car and quickly exited. Officer Earl stated that he recognized the man as “James Martinez” who he saw almost on a daily basis while on patrol at the Johnson Houses and Taft Houses. Officer Earl testified that as he exited the vehicle and approached the defendant, he put himself face to face with the defendant at which point he put his hands on him, stopped him, and almost simultaneously asked where the defendant was coming from. The defendant stated that he was coming from Pleasant and then he quickly changed his response and said he was coming from “the park.” Moments later, he heard his partner, who was standing behind the defendant, yell “gun.” Officer Earl “held the defendant close…and watched Officer Reiss remove the firearm” from the defendant’s right jacket pocket. The defendant was subsequently arrested and taken to the 25 police precinct. After learning that the defendant was 15 years old, Officer Earl contacted the defendant’s brother, Jose Leiva, so that he could be present as the defendant’s guardian during questioning of the defendant. Both the defendant and Mr. Leiva were read their Miranda rights by Detective Murray. The defendant was then asked whether he was willing to answer questions about what happened on the date in question and he responded “yes.” Detective Murray asked the defendant an initial series of questions to which the sum and substance of the defendant’s responses was that he had a gun for protection and that he did not shoot the gun at anyone. A second series of questions about what exactly happened on the date of the defendant’s arrest followed. Detective Koprowski asks the defendant why he was shooting at people, the defendant responded, “I got nothing to say about that.” Later, a third series of questions ensued which concluded with the question, “so you want to start over and let us know what really happened today?”, the defendant’s response was “no.” Mapp/Dunaway The Fourth Amendment of the United States Constitution and New York Jurisprudence protects persons from arbitrary intrusions by the government including unlawful searches and seizures (See US Const Amend IV). Under New York law, there are varying levels of suspicion, or “degrees of objectively credible belief,” that law enforcement must possess to justify interference with an individual’s right to privacy (People v. De Bour, 40 NY2d 210, 223 [1976]). To determine whether a search or seizure is reasonable, “we must consider first whether or not the police action was justified at its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible” (People v. Cantor, 36 NY2d 106, 111 [1975]). Under New York law, there are four levels of police intrusion that each require increasingly demanding justifications: 1) a level one inquiry involves the minimal intrusion of approaching to request information when there is an objective, credible reason for that interference, not necessarily indicative of criminality (People v. De Bour, 40 NY2d 210, 223 [1976]); 2) a level two inquiry is the common-law right to inquire which is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information (i.e. an officer may ask pointed questions that would lead the person approached to believe that he or she is suspected of some wrongdoing), but short of a forcible seizure (People v. Cantor, 36 NY2d at 114); 3) a level three inquiry authorizes a forcible stop and detention of a person where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor (Criminal Procedure Law §140.50[1]f; see Terry v. Ohio, 392 US 1 [1968]; People v. Cantor, 36 NY2d 106); and 4) a level four inquiry where a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence (CPL §140.10). Based on these facts, a level three inquiry was appropriate because the Officers’ knowledge constituted reasonable suspicion that the defendant had committed a crime. (See CPL §140.50 (1); see Terry v. Ohio, 392 US 1 [1968]; People v. Cantor, supra). An encounter becomes a seizure when the officer apprehends the citizen by means of physical force or show of authority and creates a detention from which a reasonable person would not feel free to leave (Landsman v. Vill. of Huncock. 296 AD2d 728 [2002]. “Police pursuit is regarded as significantly impeding a person’s freedom of movement, thus requiring justification by reasonable suspicion that a crime has been, is being, or is about to be committed” (People v. Reyes, 199 AD2d 153, 155, affd. 83 NY2d 945 [1993]). Courts have defined reasonable suspicion as that “quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [person] under the circumstances to believe criminal activity is at hand” (People v. Cantor, 36 NY2d at 112-113). Officer Earl and Officer Reiss’ collective knowledge and observations constituted reasonable suspicion that a crime had been or was being committed. Both officers were keenly aware of the high crime rate and gang activity from their experience patrolling “Police Service Area 5″ (PSA 5), the area where the defendant was arrested. The officers were familiar with and had knowledge of the defendant based on both their almost daily observations of him while on patrol in PSA 5 (including of the defendant hanging out with alleged gang members involved in shootings), a wanted flier that was issued for the defendant’s arrest for menacing with a firearm, and a previous gang assault arrest and investigation of a gang-affiliated defendant where this defendant was the victim. Over the span of four years assigned in PSA 5, Officer Earl has responded to over a dozen shootings in the area and has participated in minor investigations working to identify individuals on the street and trying to stop any violence that may occur in retaliation. Moreover, on the day that the defendant was arrested, the officers arrived at the location about five minutes after receiving a radio call that a shooting had occurred and observed the defendant jogging at a fast pace, holding a heavy looking object with his right hand in his right jacket pocket, and he was looking backward. These facts are easily distinguishable from People v. Bilal, 118 AD3d 448, 987 NYS2d 364 [2014], aff’d as modified, 27 NY3d 961, 49 NE3d 1155 (2016) submitted by defense counsel where the Court found that a radio report vaguely describing the perpetrator as a “black man with a black jacket” alone did not provide the officers with sufficient justification to pursue the defendant, a black man wearing a grey jacket exiting a NYCHA building. The officers’ collective knowledge coupled with their observations of the defendant justified a level three stop and frisk. Officer Earl stopped the defendant when he exited his vehicle, approached him, put himself face to face with the defendant, put his hands on him, and almost simultaneously asked where the defendant was coming from. Moments later. Officer Reiss, who was standing behind the defendant, conducted a protective frisk when he grabbed the defendants hand from the outside of his right pocket and immediately felt what he believed to be a gun (People v. Benjamin, 51 NY2d at 271)(an officer does not need to “await the glint of steel before he can act to preserve his safety”). Officer Reiss proceeded to yell “gun” and Officer Earl who was standing in front of the defendant, held the defendant close and watched Officer Reiss remove the firearm from the defendant’s right jacket pocket. Huntley As to the Huntley portion of the hearing, the issue before the Court is whether the statements made by the Defendant were voluntary. When a person suspected of a crime is taken into custody or significantly deprived of freedom, the 5th Amendment requires the police to administer Miranda warnings. See Miranda v. Arizona, 384 US 436 (1966). The People bear the burden of proving beyond a reasonable doubt the voluntariness of a defendant’s statement (see People v. Anderson, 42 NY2d 35, 38 [1977]; People v. Holland, 48 NY2d 861 [1979]; People v. Huntley, 15 NY2d 72 [1965]; People v. Brown, 11 AD3d 474, 475 [2nd Dept. 2004]), and if applicable, that the defendant knowingly, intelligently and voluntarily waived his or her Miranda rights (People v. Anderson, 42 NY2d 35 (1977); People v. Leonti,18 NY2d 384 [1966]; People v. Johnson, 139 AD3d 967, 969 [2nd Dept 2016]). However, “Miranda warnings need not be given until both the elements of police ‘custody’ and ‘interrogation’ are present” (People v. Reardon, 124 AD3d 681 [2nd Dept 2015])[emphasis added]). The standard for determining whether an individual is in custody is an objective one — whether a reasonable person, in the defendant’s position, innocent of any crime, would have thought that he was free to go (See People v. Yukl, 25 NY2d 585, 589 [1969]; People v. Rodney P., 21 NY2d 1 [1969]; People v. DeJesus, 32 AD3d 753 [1st Dept. 2006]; People v. Hall, 125 AD2d 698 [2nd Dept 1986]). Subjective beliefs of the defendant and/or the police officer are not controlling. (See People v. Hicks, 68 NY2d 234 [1986]; People v. Contini, 283 AD2d 323 [1st Dept. 2001]). Courts must consider the “totality of the circumstances.” (People v. Centano, 76 NY2d 837 [1990]). Among such circumstances is whether the defendant voluntarily appeared at, or accompanied officers to, the police precinct and whether questioning is conducted in a non — coercive atmosphere (People v. Acquaah, 167 AD2d 313 [1st Dept 1990]; People v. Davis, 161 AD2d 395 [1st Dept 1990]). A suspect is subjected to interrogation when he is confronted with “express questioning or its functional equivalent” (Rhode Island v. Innis, 446 US 291 [1980]). The “functional equivalent” of express questioning is “words or actions on the part of the police…that the police should know are reasonably likely to elicit an incriminating response from the suspect” (Id. at 301). Statements made at a preliminary stage of an investigation in response to a law enforcement agent’s general inquiry are not usually considered the product of an interrogation (People v. Johnson, 59 NY2d 1014 1983]; People v. Chestnut, 51 NY2d 14 [1980]; People v. Huffman, 41 NY2d 29 [1976]). Also exempt from interrogation are spontaneous statements that were essentially forced upon law enforcement agents and not the product of any inducement, provocation, encouragement or acquiescence on their part (People v. Maerling, 46 NY2d 289 [1978]). Applying the abovementioned factors to the instant case, the Court finds that despite the defendant being in custody, the statements made by him at the scene of arrest, “I am coming from Pleasant Avenue…I mean the park” were voluntary, non-accusatory and in response to a general inquiry by the officer (“where are you coming from?”) at a preliminary stage of an investigation (See People v. Johnson, 59 NY 2d 1014 [1983]). As to the statements recorded at the police precinct, there is no question that the police mirandized the defendant and his guardian. Mr. Leiza, prior to interrogating the defendant. Therefore, the issues before this Court are: 1) whether the defendant properly invoked his right to remain silent during the investigation, and 2) whether the police improperly used the defendant’s guardian as an agent to extract incriminating information from the defendant. The standard for the invocation of the Miranda right to remain silent is that it must be clear and unambiguous (see Berghuis v. Thompkins, 560 US 370, 130 SCt 2250 [2010]). If an individual who is being interrogated indicates in any manner at any time prior to or during the questioning a desire to remain silent, the interrogation must cease. If a defendant’s request to limit questioning or the defendant’s response is something less (or other) than an exercise of the right to remain silent, questioning may continue if it is within the scope of the defendant’s request. In Berghuis v. Thompkins, the Court held that, because the defendant “did not say that he wanted to remain silent or that he did not want to talk with the police,” he did not invoke his right to remain silent and thus did not invoke his right to cut off questioning (id. at 375). This Court finds that although the defendant did not explicitly state that he did not want to speak with the police, the statement “I got nothing to say about that” when specifically asked about the alleged crime coupled with defendant responding “no” when asked “so you want to start over and let us know what really happened today?” unambiguously conveyed the defendant’s unwillingness to speak. Moreover, this Court also acknowledges that a defendant’s young age is a factor to be considered when determining whether he/she has unequivocally relayed a desire to refuse to answer further questioning. Questioning should have stopped after the defendant answered “no” (see People’s Exhibit 1-Post-Miranda Video at 00:36:52). Therefore, any further statements made by the defendant thereafter are suppressed and the Court need not reach the issue of whether Mr. Leiza was used as an agent of the police to extract information from the defendant as it is moot. Accordingly, the Defendant’s motion to suppress the physical evidence recovered from him is denied. Defendant’s motion to suppress any statements made by him to police officers is denied in part and granted in part. Statements made by the defendant at the scene of the arrest are admissible. As to statements made by the defendant at the police precinct, any statements made beginning from when he was Mirandized (see People’s Exhibit 1-Post-Miranda Video at 00:28:31) up to when he unequivocally stated “no” (see People’s Exhibit 1-Post-Miranda Video at 00:36:52) are admissible. All subsequent statements made after he stated “no” (see People’s Exhibit 1-Post-Miranda Video at 00:36:52) are inadmissible. Dated: September 6, 2019 New York, NY
